Hot Topics and Cases Impacting Higher Education

HOT TOPICS:

OCR determination of whether an activity constitutes a sport. Complete text of letter issued September 17 by the Office of Civil Rights (OCR), U.S. Department of Education identifying factors related to an activity's structure, administration, team preparation and competition that will be considered by OCR in determining whether an activity is a sport that can be counted as part of an institution's intercollegiate or interscholastic athletics program for purposes of assessing compliance with Title IX.

OCR determination on the use of Race in University Admissions. Complete text of letter issued by OCR on August 28, 2009 providing guidance on how OCR evaluates whether the use of race as a factor in admissions by colleges and universities is consistent with Title VI of the Civil Rights Act of 1964. Citing the 2003 U.S. Supreme Court decisions in Grutter v. Bollinger and Gratz v. Bollinger, OCR lists six parameters that have been and will continue to be used by OCR in assessing whether an institution's particular use of race as a factor in admissions is permissible.

Treatment of Pregnant Athletes . The Office of Civil Rights of the U.S. Department of Education issued an advisory letter pertaining to pregnant athletes and compliance requirements under Title IX. Issues addressed include the prohibition of reducing financial assistance or terminating an athlete due to pregnancy. However, universities may request a doctor's certification of fitness provided that this is required of all athletes who may have physical or mental health issues.

FERPA Update . The Family Policy Compliance Office (FPCO) of the U.S. Department of Education issued an advisory opinion seeking to clarify the parameters of sharing post-secondary educational records with parents and/or third parties consistent with the Family Educational Rights and Privacy Act (FERPA).

NEW CASES:

Title VII Discrimination

Makky v. Chertoff, No. 07-3271 (U.S.C.A. – 3rd Cir.) (August 7, 2008)

Dr. Wagih Makky immigrated to the United States from Egypt 30 years ago and become a naturalized citizen of the United States. He was a prominent researcher in the field of aviation security and worked for the Federal Aviation Administration (“FAA”). His expertise was such that he was asked to investigate the Pan American Airlines bombing over Lockerbie, Scotland, and was asked by the FAA to create a unit to develop technology to detect and prevent explosives from being detonated aboard commercial planes and trains. Dr. Makky was the only Muslim and the only person of Arab decent in his unit and according to his Complaint, was always treated differently. Following the September 11, 2001 attacks, Dr. Makky faced increased prejudice and hostility at work.

In March, 2002, Dr. Makky submitted a required security clearance renewal application and according to Dr. Makky, there were no material changes since his 1987 application, exception that some of his family members had died so he had fewer connections with Egypt. By 2002 the FAA had migrated to the Transportation Security Administration ("TSA").

In October, 2002, while his security clearance renewal was still pending, a new supervisor was appointed over Dr. Makky. According to Dr. Makky, the new supervisor took the unusual step of meeting with Dr. Makky, but was only concerned with his national origin. On March 19, 2003, the day the United States invaded Iraq, Dr. Makky was placed on administrative leave, with pay. He was not given any explanation as to why he was being placed on administrative leave. Approximately a week later, he received a letter from his supervisor indicating he had been placed on administrative leave as a result of questions concerning his security clearance. In January, 2005, the office that determines security clearances issued a non-final determination that Dr. Makky’s security clearance was going to be denied pending further review. Dr. Makky was paid throughout his almost 2½ years of administrative leave, until September 7, 2005, when Dr. Makky was suspended indefinitely without pay.

Dr. Makky brought a claim under, among other things, Title VII. The district court in New Jersey agreed it had jurisdiction based upon the fact that this was a “mixed case” involving allegations of employment discrimination as well as procedural violations. These types of cases are commonly called “mixed motive theories of discrimination.” A mixed motive theory of discrimination implies that the employer made an employment decision based upon both legitimate and illegitimate reasons. 42 U.S.C. §2000(e)-2(m) states:

“Except as otherwise provided in a subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was the motivating factor for any employment practice, even though other factors also motivated the practice.”

42 U.S.C. §2000(e)-5(g)(2)(B) states an employer has a limited affirmative defense to “demonstrate that it would have taken the same action in the absence of the impermissible motivating factor.” If proven, this defense limits the plaintiff’s relief to injunctive relief, attorney’s fees, and costs.

The Court indicated that it must decide whether an essential qualification for the job is a component of Dr. Makky’s prima facie case of discrimination. The Court held that a mixed motive plaintiff has failed to establish a prime facie case of Title VII employment discrimination if there is unchallenged objective evidence that he did not possess the minimal qualifications for the position plaintiff sought to obtain or retain. One of the basic qualifications for Dr. Makky’s job with the TSA, was that he needed to have a security clearance. The United States Supreme Court has held that a decision whether to grant a security clearance is non-reviewable by the Courts. However, the issue of whether coming to that decision as to deny security clearance violated someone’s due process is something that is subject to review by the Courts.

In this case, the Court ultimately held that Dr. Makky did not possess the objective baseline qualifications. Thus, the TSA was within its discretion when it dismissed Dr. Makky. The Court indicated that this involves inquiry only into the bare minimum requirement necessary to perform the job at issue. Typically, this minimum requirement will take the form of some type of licensing requirement, such as a medical, law, or pilot’s license, or an analogous requirement measured by an external or independent body rather than the Court or a jury.

The Court further held that although there may have been improper reasons for the suspension without pay, and ultimately the loss of employment, Dr. Makky was not entitled to relief because he could not meet the requisite minimum requirements for his employment, which was a security clearance.

Free Speech

On October 10, 2004, OutFest organized by the Philly Pride Presents, Inc. (Philly Pride) celebrated the “National Coming Out Day” on behalf of the lesbian, gay, bisexual, transgendered community. Counter protestors were members of Repent America, a group of which Startzell was a member and Michael Marcavage who is their leader. Philly Pride had obtained the requisite permitting from the City of Philadelphia to hold the rally and parade and as part of the program, there was a stage for performances and vendors had booths in various places along the route.

The afternoon of the parade, Repent America arrived, bringing with them bullhorns, large signs, literature, and a documentary film crew. The signs themselves displayed Biblical messages, many of them displaying Repent America’s view that homosexuality is a sin. Upon the arrival of Repent America, Philly Pride’s “Pink Angels” linked arms together and formed a human barrier to prevent Repent America from entering the event. Repent America complained to the police, who then ordered the Pink Angels to move so that the Repent America could enter the OutFest area. As Repent America was moving into the OutFest area, Philadelphia Police Captain Fisher told Marcavage that “we don’t want any silliness.” According to Captain Fisher, he meant that he did not want Marcavage to get into a situation where the police would have to save him and he would “start getting beat up or something.”

As Repent America entered the OutFest area, they began to sing loudly, play instruments, display their large signs and use microphones and bullhorns. They were instructed by the police to move further up the street so that they would not block the stage or interfere with the activities going on in this area. At one point, one of the members of Repent America called one of the transgender persons in attendance a “she-man,” saying through his bullhorn, “the mirror lied to you this morning, your shadow is showing.” After this exchange and because Repent America was blocking the vendor booths and obstructing the performances on the stage, Repent America was directed to move by the police to another area further down the street, but within the perimeter of the OutFest area. Marcavage and his group refused to follow the orders directed by the police and they were subsequently arrested.

The individuals in Repent America filed a lawsuit in the United States District Court for the Eastern District of Pennsylvania claiming violations of their First Amendment rights under §1983 and §1985 of the Civil Rights Act. The District Court granted summary judgment based upon Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995) to Philly Pride and to the city of Philadelphia. Repent America appealed.

The Third Circuit refused to find that the Supreme Court case of Hurley controlled this case. The Court concluded that the members of Repent America were dissenting speakers on the Philadelphia streets and sidewalks and there was no danger of confusion that Repent America’s speech would be confused with the message intended by Philly Pride. (Why Hurley did not apply). Thus, Repent America did not infringe on Philly Pride’s fundamental right under the First Amendment to have “the autonomy to choose the content of its own message.” The Court stated city streets and sidewalks are considered traditional public forums.

The Court noted that even in a traditional public form, the government may impose content neutral time, place or manner restrictions, provided that the restrictions “are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.” The Court went through the analysis of whether the city’s actions were content neutral, took a narrowly tailored approach, and whether there were alternative channels to Repent America’s communication. The Court found that the actions of the city in restricting Repent America’s movement when Repent America was interfering with or disrupting the speech of Philly Pride permitted event were justified, reasonable, content neutral, regulations of time, place or manner of their expressions. Thus, the Court held that groups, who receive permits to use public facilities for their own purposes, are able to have an event in traditional public forum, have to allow counter-protesters access to the forum. However, once the protestors begin to interfere with the activities of the group that was granted the permit, the police are within their right to enforce the law with regard to behavior that would be considered disorderly to the permitted entity. The concurring judge believed that the majority went too far and would have affirmed based upon Gilles v.Davis, 427 F.3d 197 (3d Cir. 2005)(holding that the use of fighting words constitutes enough to arrest the demonstrators).

Labor Relations

In this case Registered Nurse Richard Baldwin was terminated by Temple Universityfor having sex with a patient under his care. The patient had recently had open heart surgery and was in the cardiac care unit at Temple Hospital. A day after the intercourse, the patient spoke to another nurse and asked to be examined because she had unprotected consensual sex with Baldwin and wanted to be checked. A gynecological evaluation was completed, showing no evidence of assault, but no trace evidence was sought as the patient indicated that the sex was consensual.

Temple conducted an investigation and Baldwin made sometimes conflicting, but otherwise incriminating statements admitting to the intercourse. No other staff members reported anything out of the ordinary at the time of the act. Temple terminated Baldwin the next day. Baldwin grieved the termination and at arbitration, the termination was overturned. Temple appealed and the Court of Common Pleas affirmed. Temple appealed to the Commonwealth Court.

The Court cited the essence test and concluded that the arbitrator was free to discredit any testimony that he wanted to, but he was not entitled to misrepresent the facts. The court cited numerous times when the arbitrator misrepresented and/or mischaracterized facts to support his decision. The court also found that the arbitrator failed to conduct a fair hearing as required under Smaligo v. Fireman’s Fund Ins. Co.

The Court also invoked the public policy exception to the essence test that was announced in Westmoreland I.U. #7 v. Westmoreland I.U. #7 Classroom Assistants Educ. Support Pers. Ass’n. (2007). The Court held that consensual sex violated three specific regulations that regulate the behavior of registered nurses. As such, the Court found that the arbitrator’s decision contravened public policy.

The Court also resolved how it would address the issue of the facts in the case. It stated:

At bottom, the case concerns the manner of the Arbitrator's evaluation of the evidence, and for that purpose the j.n.o.v. standard is better suited. The Supreme Court has stated that there are two bases upon which a j.n.o.v. can be entered: "one, the movant is entitled to judgment as a matter of law, and/or two, the evidence was such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant," and that to uphold j.n.o.v. on the first basis, the court must review the record and conclude "that even with all the factual inferences decided adverse to the movant the law nonetheless requires a verdict in his favor, whereas with the second [the court] review[s] the evidentiary record and [concludes] that the evidence was such that a verdict for the movant was beyond peradventure."

The Court concludes that it is beyond peradventure that the evidence including Baldwin's admissions shows that a verdict in favor of Temple was required because Baldwin engaged in consensual sex with the Patient under his care. The behavior constitutes just cause for dismissal and thus precludes the Court from enforcing the award. Thus, the Court of Common Pleas was reversed and the termination was reinstated.